While food and drug law has made its greatest
contributions to the health and welfare of society over the past
two centuries, it is indisputable that the history of this body of
law is much older than two hundred years.1 Soon after
man realized he needed to eat, he recognized a need to establish
rules and regulations governing the sale, preparation and handling
of food. Perhaps the oldest documented set of food laws are the
Jewish dietary laws, also known by the Hebrew term, kashrut,
from which the word "kosher" is derived.

Unlike most laws related to food, which are enacted
by society through government or other rulemaking bodies, Jewish
dietary laws are believed to be conceptualizations of divine will
that were expressed to Moses at Mount Sinai and transcribed in the
Old Testament.2 Intellectual curiosity and an interest
in the evolution of food and drug law compel both Jews and Gentiles
to study the Jewish dietary laws. For observant Jews, however,
Jewish dietary laws possess unique significance. Kashrut is
one of the pillars of Jewish religious life and virtually every
aspect of eating and preparing food implicates some Jewish dietary
law. While the First Amendment prevents any governmental
enforcement of religious law, for those who are strict
practitioners of the Jewish religion, the observance of Jewish
dietary laws is every bit as important and compelling as is the
observance of secular law. Despite the important role Jewish
dietary laws play in the lives of many, few give much thought to
the foundations of and rationales for kashruz.

After describing the Jewish dietary laws and their
origin, this paper will present and analyze some Judaic and secular
scholarly attempts at explaining the underpinnings of these laws.
The Pentateuch does not explicitly explain the reasons for the
laws, which has made this issue a popular topic for debate among
Biblical scholars. While the arguments these scholars make for
their positions are logical and often convincing, it is important
to remember that an accepted principle of jurisprudence and legal
philosophy is that "unless a code of
law itself states the underlying idea of a law, any theory about
that idea remains conjecture. "~

For a discussion of the early regulation of food
and drugs, see Peter Barton Hutt and Richard A. Merrill, Food
and Dru2 Law (Westbury: The Foundation Press, Inc., 2d ed.
1991), 1-4.

2 I will also refer to
the Old Testament as the Pentateuch and the Torah.

11. The Reliaious Imnortance of Searching for
the Bases of the Jewish Dietary Laws

Exploring the logical bases for the Jewish dietary
laws is necessary to gain a complete understanding of the subject
matter. However, such an investigation is important not only from
an intellectual perspective but from a religious one, as well. The
relationship between the laws of the Torah and their underlying
ideas has always been the subject of deep reflection by scholars.
They sought to understand not only laws easily accesible to human
reason, but laws whose underlying purpose could not be easily
comprehended, as well. The latter category of laws, known as
hukim, include the Jewish dietary laws.4

If Orthodox Judaism wishes to maintain its loyalty
to kashrut and to other similar spheres of practical
religious life, it must introduce to young men and women the
underlying ideas of these laws. They must be shown that religious
commandments such as the dietary restrictions are not outmoded
ceremonies but, rather, ways of life that transcend time. Habit and
mechanical performance are not sufficient to help perpetuate the
practices that have traditionally characterized the Jewish way of
life. To insure a continuation of ritual practice such as
observance of dietary laws, there must be conviction based on
knowledge. By explaining not only what Jewish dietary laws require
but why, Jewish youth receive a set of rules they can respect,
which, for any legal system, is indispensable for survival.

Ill. The Jewish Dietary Laws

While most people, particularly in the United
States, can identify selected elements of the Jewish dietary laws,
few appreciate the scope and depth of the laws. The laws deal with
virtually every aspect of food and its preparation. While the
discussion to follow is not exhaustive, it highlights the major
aspects of the laws of kashrut.

A. EberMm Hahai

The first dietary law in the Torah is eber
mm hahai, which prohibits the consumption of a limb or any
other part of an animal while it is still alive. After permitting
man to eat meat for the first time, the Lord makes the following
qualification: "But flesh with the life thereof which is the blood
thereof shall ye not eat."5 This law is applicable to
Jews and Gentiles alike, as it is one of the seven

403 8983 00 3

Noahide laws binding on all
mankind.6 As eating an animal while it remains alive is
morally reprehensible to most, most people practice this
fundamental aspect of Jewish dietary law regardless of their
reigion.

B. Permitted and Prohibited Animals

Perhaps the most universally publicized principle
in Jewish dietary law is that man may eat only certain species of
four-legged animals, birds and fish. The notion that certain
animals are "clean," or tahor, while others are "unclean,"
or tamel, is first seen when God commands Noah to take
animals along with him on the ark: "Of every clean beast thou shalt
take to thee seven and seven, each with his mate; and of the beasts
that are not clean two and two, each with his mate."7
"Our sages interpret the words "clean' and "unclean" as references
to the animals which in the future would be labelled as [kosher and
non-kosher.]"2

In identifying what creatures may and may not be
eaten by man, the Torah divides all beings into four groups: (1)
domesticated animals and beasts; (2) birds; (3) fish and (4)
insects and reptiles. Concerning domesticated animals and beasts,
the book of Leviticus states, "Whatsoever parteth the hoof and is
wholly cloven-footed and cheweth the cud among the beasts you may
eat."9 These requirements are repeated again in
Deuteronomy 14:6. Thus, an animal's flesh may be eaten if it is a
ruminant, an animal that chews its cud, and if it has split hooves.
Animals that possess only one of the required characteristics, such
as the camel, which does not have split hooves, and the pig, which
does not chew its cud, are forbidden. Deuteronomy 14:4-5
specifically enumerate the following animals as permissible: "the
ox, the sheep, the goat, the hart, the gazelle, the roebuck, the
wild goat, the pygarg, the antelope and the mountain
sheep."10

6 The
Noahide laws were given to the sons of Noah and since both
Jews and Gentiles descended from them, the laws are binding on all
mankind. The Noahide laws were promulgated long before the
Sinaitic legislation, which is binding only on the children of
Israel. For a discussion of these laws, see Grunfeld, The Jewish
Dietary Laws , 41-42.

With respect to birds and fowl, unlike with
domesticated animals and beasts, the Pentateuch does not prescribe
identifying physical characteristics. Rather, it enumerates twenty
four types of "unclean" birds, with all others being permitted."
"Not only is the meat of a non-kosher animal or bird forbidden, but
its milk and eggs are forbidden as well."'2 All birds of
prey are forbidden, such as the vulture, the osprey and the raven.
While the Torah theoretically permits man to eat any bird not
belonging to one of the twenty four forbidden species, today, only
those birds that have been identified by tradition as kosher may be
eaten.

For fish to be "clean" and permissible as food, the
Torah requires them to have both fins and scales.'3 All
shellfish, therefore, are not kosher. Scales are the determining
factor because "every fish that has scales has fins also- but the
reverse is not true."14 Fish are permitted so long as
they possess scales while in the water, even if they fall off when
the fish are removed from the water.

Insects and reptiles are the final class of living
things with which the Torah deals. As a general rule, the
Pentateuch forbids all "swarming things," calling them an
"abomination."'5 In the next verse, however, the Torah
qualifies the prohibition, stating that locusts that have four
leaping legs and four wings covering the greater part of the body
may be eaten. However, since modern society has difficulty
identifying these locusts, most modern Jewish communities refrain
from eating locusts altogether. "Although the bee is a forbidden
insect, its honey is regarded as 'transferred nectar' and may,
therefore, be eaten.

C. Ritual Slaughter

Even if a domesticated animal, beast or bird is
permissible to eat, Jewish dietary law prohibits its consumption
unless it has been slaughtered in a ritual manner known as
shehitah27 While

" The prohibited birds
are listed in two places: Leviticus 11:13-19 and Deuteronomy 14:
12-18.

the Torah briefly alludes to the requirement of
ritual slaughter when God commands, "You shall slaughter your
cattle and flock,"'8 the details of this commandment
were taught by Moses and transmitted orally until transcribed in
the Talmud in great detail.19

The details of shehitah are so complex and
minute that a carefully trained and licensed individual called a
shohet must carry out the slaughter. Before the
shohet slaughters the animal, he must check to make sure the
animal's neck area is clean and free of any object that could
impair the shehitab process. In domesticated animals and
beasts, Jewish law requires that the shohet sever both the
trachea and the esophagus. In birds, either one of these must be
severed. The shohet must cut with continuous strokes and
without pressure or hesitation so as to cause death as quickly and
painlessly as possible. After the animal has been slaughtered, the
shohet examines it and investigates whether it possesses any
blemishes that would render it unfit for consumption in accordance
with the Jewish dietary laws. While humane societies have attacked
shehitah as a cruel form of slaughter, in fact, the source
of the commandment is a desire to minimize the animal's
suffering.2 '~ Furthermore, "[miodern science has borne
out the claim that shehitahis
the most humane method of slaughter. "21

D. Prohibited Parts of an Otherwise Permitted
Animal

Even if an animal is from a permitted species and
is slaughtered in a ritual manner, there are two components of the
animal's body that are strictly prohibited for human consumption: a
special kind of fat called heleb and blood. "It shall be an
everlasting statute throughout your generations in all your
dwelling places: all heleb and all blood shall ye not eat.
"~ Violation of these
prohibitions is a serious offense and results in the most dreaded
punishment in Judaism, karet, or excision of the soulY

The prohibition of eating heleb applies only
to the fat of an ox, sheep or goat.~'

'~ Deuteronomy
12:21.

19 The Talmud is the
body of teaching that comprises the commentary of rabbinic scholars
on the Mishnak, which interprets the Old Testament.

~ See Grunfeld, The Jewish Dietary Laws ,
55.

21 Klein, A Guide
to Religious Practice , 308.

~ Leviticus 3:17.

~ See Leviticus 7:25 for heleb and Leviticus
7:27 for blood.

~' Leviticus 7:23.

403 8983 00 6

Moreover, not all fats are prohibited. Heleb
refers only to the kinds of fat offered for the Temple's
sacrificial service. Permitted fat is called shuman.
According to traditional interpretation, the prohibited fats are
(1) the fat covering the intestines; (2) the fat that lies over
certain compartments of the stomach of certain ruminants and over a
part of the bowels; (3) the kidneys and the fat connected with them
on the loins and (4) the diaphragm. According to the Talmud, one
can distinguish heleb from shwnan because only the
former is not intermingled with the animal's flesh but forms a
separate, solid layer.~

While the prohibition of heleb applies only
to the fat of the ox, sheep and goat, the prohibition of blood
applies to all domesticated animals, beasts and birds, but not to
fish. Blood is prohibited whether it is in liquid form or if it is
part of the muscle, tissue, bone or fat. Blood may be extracted
from meat and poultry either by broiling or salting. This process
is commonly referred as "koshering" the meat, since only after this
procedure has the blood been removed, thereby rendering the meat
permissible for eating.

E. Mixing Dairy and Meat

Another relatively well-known aspect of Jewish
dietary law is that one may not eat meat and milk products
together. The source of the prohibition is a verse repeated three
times in the Torah:

"Thou shalt not seethe a kid in its mother's milk.
"~ The Talmud interpreted the
triple repetition as an indication that three distinct activities
are prohibited: cooking meat and milk together, eating such a
mixture and deriving any benefit from such a mixture.27
While the Torah speaks specifically of a lamb, rabbinic
interpretation extended the prohibition to all meat and fowl, but
not to fish. Milk includes all dairy products.

The commandment to keep milk and meat separate has
been interpreted rather strictly. In order to make the separation
as complete as possible, kashrut requires separate utensils,
dishes and cutlery for meat and dairy foods and to wash and store
them separately. Furthermore, strict observance demands that since
meat is not easily digested and leaves a taste in the mouth that
lingers, one must wait an interval of up to six hours after
consuming meat before eating a dairy product. Since dairy products
are more easily digested and their tastes do not linger in the
mouth as long as meat, one must merely

25 Hulin 49a.

~ Exodus 23:19, Exodus 34:26 and Deuteronomy
14:21)

27 See Hulin 115b.

403 8983 00 7

wash out one's mouth after eating a dairy product
and may immediately thereafter eat meat. With the separation of
milk and meat, the family and the home become directly involved in
the Jewish dietary laws.

IV. Suggested Rationales for the Jewish Dietary
Laws

A. Hv~iene

The motive most commonly attributed to the Jewish
dietary laws is hygiene. "The dietary laws are most often thought
of as health measures dictated by the primitive hygienic conditions
of the ancient world. "~
According to this theory, Moses, by anticipating the findings of
modern science, was history's greatest public health administrator.
The hygienic theory is proposed by both ancient and contemporary
Judaic and secular scholars. The theory enjoyed its greatest
popularity at the beginning of this century with the great advances
in medical knowledge.

While many perceive the hygienic theory as a
rationale most commonly embraced by secular scholars, one of the
most vocal proponents of the hygienic theory is the respected
Biblical commentator and doctor, Maimonides?~ Arguing that
forbidden foods are unwholesome, Maimonides states, "All the food
which the Torah has forbidden us to eat has some bad and damaging
effect on the body.. .The principal reason why the law forbids
swine's flesh is to be found in the circumstances that its habits
and its food are very dirty and loathsome. "~ Maimonides gives an explanation solely based on
hygienic considerations for the prohibition against consuming the
sacrificial fat, heleb: "The fat of the intestines is
prohibited because it fattens and destroys the abdomen and creates
cold and clammy blood. "i' Concerning
the prohibition against mixing milk and meat, Maimonides states
that "meat boiled in milk is undoubtedly gross food, and makes a
person feel overfull."32

Many other scholars share Maimonides' view that the
Jewish dietary laws were essentially

a hygienic code. Rabbi Samuel Meir33
declared that "all cattle, wild beasts, fowl, fish and various
kinds of locusts and reptiles which God had forbidden to Israel are
indeed loathsome and harmful to the body, and for this reason they
are called unclean. "s' Another
exegete, Nachmanides,35 states that it is only
permissible to eat fish that have fins and scales because "those
without fins and scales usually live in the lower muddy strata
which are exceedingly moist and where there is no heat. They breed
in musty swamps and eating them can be injurious to health.
"~ Many secular scholars agree
with the theory that hygienic considerations underly the Biblical
dietary laws?7

While a selective examination of the various
aspects of the Jewish dietary laws supports the hygienic theory, a
closer, more complete analysis reveals several difficulties with
this inherently intuitive theory. One objection to this theory is
that the Pentateuch permits man to consume fruits and vegetables
without restriction.38 If the purpose of the dietary
laws was to promote man's health, would not the Torah prohibit the
consumption of poisonous herbs and fruits? The hygienic theory also
fails to explain two of the most fundamental aspects of the Jewish
dietray laws: ritual slaughter and the prohibiton against consuming
blood. With respect to permissible and prohibited animals, the
hygienic theory is both over and under inclusive. It is unproven
that all animals declared "unclean" by the Pentateuch are harmful
to health. "For example, the Arabs have long enjoyed the camel and
its products. As for pork, if it is supposed that ancient Israel
had discovered the risks of eating it, they could also have learnt
that these risks could be avoided by cooking it
thoroughly."39 Conversely, animals deemed "clean" by the
Old Testament can be injurious to health: "We often forget that
sheep could transmit tape worm, that

~ Rabbi Samuel Meir (1080-1174) was a Biblical and
Talmudic commentator born in northern France. He was a prominent
disciple of Rashi, the leading commentator on the Bible and
Talmud.

~' Commentary to
Leviticus 11:3.

~ Nachmanides (1194-1270) was a Biblical
commentator, a historian and a pioneer of Jewish mysticism who
lived in Spain.

cows have liver worms and that most of the clean
fish in fresh water have tape worms. "~~' Finally, if, indeed, hygiene were the motive
underlying the Jewish dietary laws, why did the Church allow their
abolition in the first century A.D.? These various objections place
doubt on the attempt to attribute hygienic motives to the Jewish
dietary laws. While observance of the dietary laws may well have a
secondary effect on the health and longevity of the laws'
observers, it is unlikely that hygiene is the primary motivation
underlying kashrut.

B. Symbolism

The premise of the symbolic theory of the Jewish
dietary laws is that abstract ideas are not always the best means
of influencing human behavior. Often times, a symbol, a visible
sign representing an idea, is a better way of affecting conduct
than theories unreflected in any tangible form. According to this
theory, the dietary laws are symbolic of proper conduct and obeying
the laws condition man to act in that manner. While many adhere to
this theory, they often differ on what they believe to be the
underlying message of the symbols.

Mary Douglas, in her book Purity and Danger
, uses the symbolic approach to explain permissible and
impermissible animals.41 According to Ms. Douglas,
holiness is not merely defined negatively as separation from evil
but positively as purity and wholeness. To arrive at holiness, God
embraces purity and wholeness and abominates mixtures. Thus, Israel
is prohibited from plowing a field with two different animals under
a single yolk, from sowing a field or vineyard with two kinds of
seed and from wearing a garment made of both wool and
linen.42 Holiness also means physical wholeness. The
priests who served in the Temple had to be physically complete;
those who were blind, lame or in any way blemished could not serve
as priests.

Douglas argues that the same insistence on
wholeness and purity underlies the laws regarding permissible and
impermissible animals. Clean animals are those that conform to the
standard "pure" and "whole" types. Animals like sheep and goats are
clean because they have split hooves and chew their cud while
animals lacking these characteristics are considered unclean. Fish
that conform to the "wholeness" requirement are those with fins and
scales and only those may be eaten. Insects with

an indeterminate form of motion, which "swarm", are
unclean. In short, "holiness requires that individuals conform to
the class to which they belong. ""u' Dr. 1 Grunfeld, in The Jewish Dietary Laws ,
takes an approach similar to Douglas' in explaining the prohibition
against mixing milk and meat: "In reality, the prohibition of meat
and milk belongs to the category of laws which forbid a mixture of
species as contrary to God's order of creation... .When God created
His world, we are reminded again and again with grave solemnity,
every creature was created in accordance with the law of its own
species and it is intended to develop forever in the rhythm of this
law.""

Rabbi Samson Raphael Hirsch45 sees a
different message in the laws regarding clean and unclean animals.
He feels that "the human body is destined to be the instrument of
the soul and to implement its aims of holiness and moral freedom.
Hence, the more passive and submissive the body is, the more it
will yield to the dictates of the soul as man's higher nature."" To
condition man to be passive and submissive so as to maximize his
sensitivity to the impulses of moral life, the Torah imposes
dietary laws which represent these ideals. Vegetables and fruits
are all permissible because they are the most passive substances.
With respect to animals, those creatures which are herbivorous are
certainly more passive than the more aggressive carnivores. Animals
that chew their cud and have split hooves, such as the sheep, the
goat and the ox, are, as a rule, herbivorous and relatively docile
and passive. Thus, they are permissible to eat. Carnivores, in
general, do not possess the characteristics of kosher animals and
may not be eaten. Likewise, birds of prey, which are aggressive and
carnivorous, may not be eaten.

Philo, in De Specialibus
Leeibus'7 , embraced the symbolic approach to
explaining the dietary laws, as well. He explained the requirement
that permissible domesticated animals, beasts and fowl be ruminants
by stating that chewing the cud symbolizes the effective learning
process of repetition and memorization. With respect to the split
hoof characteristic, Philo said this symbolized that the "way

'~ Douglas, Purity
and Danger , 53.

"Grunfeld, The Jewish Dietary Laws , 22.

" Rabbi Samson Raphael
Hirsch (1808-1888) was a rabbi and philosopher as well as a leader
and foremost exponent of Orthodoxy in Germany in the 19th
century.

of life is twofold, one branch leads to vice, [the]
other to virtue....""

While the symbolic approach to explaining the
dietary laws is intriguing, its modus operandi seems to be
nothing more than intuitive guesswork. The symbolism discovered
seems to be largely dependent on the interpreter's imagination.
"Unless greater discipline can be introduced into symbolist
interpretation, it will always be more liable to represent the
whims of the commentator than the purpose of the
law."49

C. Social Association

A third theory explaining the Jewish dietary law
maintains that the dietary laws were a means of both symbolizing
and maintaining Israel's status as the chosen people. Gordon J.
Wenham proposes this theory in his essay, "The Theology of Unclean
Food."~ Symbolically, says Wenham, "the divisions within the animal
kingdom express in elaborate symbolism the divisions among men, the
most important of these being that between Israel and the Gentiles.
The laws reminded Israel what sort of behaviour was expected of
her, that she had been chosen to be holy in an unclean world.
"51 More important than the symbolic
representations of the dietary restrictions was the laws' operation
to effectively prevent Jews from interacting socially with
Gentiles. Social interaction almost always involves food and drink
and since the dietary restrictions prevented Israel from from
eating with her Gentile neighbors, Jews were essentially placed in
social isolation. Wenham points out that dietary laws prevented
Jews from hiding their Judaism, as "circumcision was a private
matter, but the food laws made one's Jewish faith a public affair.
Observance of the food laws was one of the outward marks of a
practising Jew, and this in turn enhanced Jewish attachment to them
as a reminder of their special status. "52

Wenham explains the abolition of the dietary laws
by the Church when he states that with the arrival of Christianity,
"Judaism was universalized to embrace all mankind... .With the
incorporation

of the Gentiles into the Church, Israel was no
longer regarded as the unique covenant people. "'s Thus, when Christianity broke down the wall of
separation between Jews and Gentiles, it naturally had to abolish
that which symbolized this separation, the dietary laws.

D. Moral Freedom

This theory of Jewish dietary law proposes that the
underlying aim of kashrut is to teach man to master his
emotions and desires, thereby leading to complete moral autonomy.
This approach takes exception with the belief that men who do not
obey laws are freer than law-abiding individuals because they are
free to follow their own inclinations without outside restrictions.
In reality, the moral freedom theory states, men who are not bound
by law are not free at all. Such individuals are slaves to their
own instincts, desires and impulses. Therefore, voluntary
submission to the law emancipates man rather than enslaving
him.

The moral freedom theory is based on the belief
that the constraint of law, in general, is the beginning of human
freedom. Where the laws in question regulate one of the most
fundamental of human desires, eating, the freedom gained is the
highest level of sovereignty. The craving for food, along with the
impulse of sex, is probably the most vehement of man's instincts.
If unconstrained, man's desire to eat can lead to gluttony, obesity
and a general lack of self control when it comes to food. The
dietary laws do not attempt to destroy man's innate desire for
food. Rather, kashrut's goal is to transfigure the instinct
for food into self-discipline and restraint.

E. Ethics

Jacob Milgrom, in his article, "Food and Faith: The
Ethical Foundations of the Biblical Diet Laws," states that
kashrut is an ethical system designed to allow man to
consume animal flesh without being brutalized in the process?~'
Milgrom points out that man was created a vegetarian, with Adam and
Eve never eating meet. The sons of Noah were the first humans
allowed to eat meat.55

When God realized that man was carnivorous and
could not resist his instinct to eat meat, the Lord implemented a
system whereby man could satisfy his craving in an ethical
manner.

Milgrom points to three aspects of the dietary laws
that exemplify his theory. First, there

is the prohibition against eating blood. He states
that killing animals for food could lead man to become desensitized
to killing and thereby lose his reverence for life. In prohibiting
blood, which God calls "life, "~
God warns man not to allow this desensitization to occur. Milgrom
maintains that kashrut'S
delineation of only certain animals as permissible for food also
raises man's consciousness and reverence for life. Generally, the
permissible animals are domesticated mammals like sheep, goats and
cows. The dietary laws, thus, permit the consumption of animals
that man domesticates for all his survival needs:

milk, wool, skins and meat. Since man needs these
animals for things other than meat, he will not kill them
unnecessarily. The third aspect of the dietary laws Milgrom
mentions is shehitah, or ritual slaughter. More than any
other law, ritual slaughter illustrates the ethical motive of
kashrut: God will allow us to slaughter a living being for
food, but only if we do it in a manner that evokes minimal
suffering. In short, according to Milgrom, by prohibiting the
ingestion of life, by reducing the choice of flesh to a few animals
and by limiting the slaughter of even those few to a humane method,
the Torah allows humans to satiate their desires for animal flesh
without being dehumanized in the process.

F. Mysticism

A final approach to explaining the Jewish dietary
laws is the mystical approach. According to this theory, the
principal purpose of divine laws like kashrut is not to
provide a course in moral discipline. Rather, say mystics, the main
importance in God's commandments lies in their effect on the
universe as a whole and on man as the center of that universe. With
respect to the dietary laws, mystics maintain that prohibited food
has a damaging effect on man's soul.

Isaac ben Moses Arama57 stated the gist
of the mystical position when he said, "The reason behind all the
dietary prohibitions is not that any harm may be caused to the
body, but that these foods defile and pollute the soul....
~ Arama and other followers of
Jewish mysticism seem to have some support from the text of
Leviticus for their position: "Ye shall therefore separate between
the clean beast and the unclean, and between the unclean fowl and
the clean; and ye shall not make your souls detestable by beast or
by fowl.. .which I have set apart for you to hold unclean."~ From
these passages,

~ See, e.g., Leviticus 17:14.

~ Isaac ben Moses Arama (1420-1494) was a Spanish
rabbi and philosopher who settled in Naples after the expulsion of
the Jews from Spain in 1492.

58Encyclonedia
Judaica , 43.

~ Leviticus 20:25-26.

403 8983 00 14

the mystics maintain that the scope of the dietary
laws is not only the human body but the whole human personality, as
well.

The defilement of the soul resulting from a
consumption of forbidden foods is known as tumah, which is
derived from the word tamei, the term God uses to
characterize the prohibited animals in the Pentateuch.w While
tamei is usually translated as "unclean," mystics feel the
translation is entirely misleading because it suggests a physical,
material quality when, in fact, twnah is a metaphysical
state of being. The mystical theory stresses that the term
tamei is used in the Torah not only to describe prohibited
food but also to describe "principal, moral and religious offences,
namely, idol worship and sexual immorality, especially
incest."61 Thus, the mystics claim, the common language
assures us that consuming food that violates the Jewish dietary
laws has the same contaminating effect on the soul and moral
character of man as idolatry and immoral sexual conduct.

One issue mystics must address in order to lend
credence to their theory is the fundamental question of how food
can influence man's spirituality; how can we explain the transition
from body to soul? The thirteenth century Jewish mysticist, Menahem
Recanati, in his book, Taamei Hamitzvot , analyzes the
mental make-up of man and tries to show how it is influenced by
food. According to him, the human body is an instrument of the soul
and the means by which the soul can discharge its task in this
world. Since the body is the intermediary between the soul and the
world, it matters a great deal whether or not this instrument is a
willing servant of the soul. Recanati wrote:

Even as a craftsman cannot do his work without
proper tools, so the soul cannot fulfill its task without a
coopearting body; and as it makes a great deal of difference for
any precision work whether a craftsman possesses fine tools or not,
so it is of great importance for the human soul whether the body
consists of fine or of coarse material. Ever the light shines the
brighter through a good lamp, and the same trees yield different
fruit according to the soil in which they are
planted.62

Recanati maintains that initially, all souls are of
equal holiness. However, the degree of holiness they are able to
attain in this world depends largely on the particular body the
soul inhabits. Forbidden food makes the body coarse and increases
the power of evil inclination, providing a very poor intermediary
between the soul and the outside world. Menahem Recanati sums up
the mystical position as follows:

60 See, e.g.,
Leviticus 11:4.

61 Grunfeld, The
Jewish Dietary Laws , 16.

~Ibid., 18

403 8983 00 15

"With all the dietary laws it says 'Be Holy unto
Me' in order to purify the soul which draws its

sustenance from the food in accordance with its
refinement and purity. "~

V. Conclusion

The depth and complexity of the Jewish dietary laws
allow them to be analyzed on many planes, which explains the many
rationales attributed to them throughout history. Had the laws been
intended to serve as a code of conduct for only a certain period in
history, the task of concluding the underlying basis of the laws
would not be very difficult. Unfortunately, Jewish tradition
believes that kashrut, like most other laws in the Torah, is
timeless and should serve as a cherished religious principle for
each generation. As the Old Testament does not provide a reason for
the dietary laws and there is nothing tantamount to legislative
history to shed light on the issue, discovering the bases of
kashrut will not be easy.

As an Orthodox Jew, I am able to justify the
dietary rules to myself in two ways. First and foremost, this is
God's commandment, and as a student of law, a fundamental rule is
that the binding force of a law is always independent of its
ratio legis. Second, regardless of what motivated the
implementation of the dietary laws many centuries ago, today, they
have a very positive effect on human behavior. The dietary laws
allow a person to take a mundane act devoid of any holiness,
eating, and make it a holy event. In short, kashrut turns
something as simple as the daily diet into an act of reverence and
an implement of worship.

Professor Hurt : Without sounding
patronizing, I wanted to thank you for a wonderful experience in
your class. You brought a refreshing enthusiasm everyone
appreciated and taught an area of law most of us knew little about.
I hope to see you back again.